Central Administrative Tribunal - Madras
K Asaithambi vs Health And Family Welfare on 18 June, 2024
1 MA 556 /2023
in OA 949/2011
`CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
MA/310/00556/2023
IN
OA/310/00949/2011
and
OA/310/00949/2011
Dated this 18th day of June, Two Thousand Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI,MEMBER(A)
AND
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
1. K. Asaithambi,
2/345, Bharathidasan Street,
Sakthi Nagar,
Kannanenthal Road,
Ayyar Bungalow,
Madurai.
2. Mrs. R.Alamelu,
W/o Mr. Chandrasekaran,
Aparna Nethaji Nagar,
Thanakkankulam,
Madurai.
3. Mrs. J. Santhi Ramabai,
W/o Mr. Muthukrishnan,
Plot No.156,Pappa Bhavanam,
Poriyular Nagar,
Thirumalpuram Post,
Thiruppalai, Madurai.
4. Mrs. Ruby Premavathy,
W/o Royappa John Rajasudhan,
Plot No.3, Perumal Avenue,
D.S.P. Nagar Extension,
Madurai. .. Applicants
2 MA 556 /2023
in OA 949/2011
By Advocate M/s C. Vigneswaran
Vs.
1. Union of India
rep by its Secretary to Government,
Ministry of Health and Family Welfare,
Nirman Bhavan,
New Delhi.
2. Union of India
rep by its Secretary to Government,
Ministry of Finance,
Department of Finance,
New Delhi.
3. Union of India
rep by its Secretary to Government,
Ministry of Law Justice,
Department of Legal Affairs,
Shastri Bhavan, New Delhi.
4. The Indian Council of Medical Research
rep by its Director General and
Secretary to Department of Health Research,
Ansari Nagar, New Delhi. .. Respondents
By Advocate Mr. M. Kishore Kumar, SPC
3 MA 556 /2023
in OA 949/2011
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) The applicants herein filed OA 949 of 2011 for regularisation of their services with effect from the date of their initial appointment with all consequential benefits. The Tribunal by its order, dated 22.11.2013 directed the 4th respondent to consider the case of the applicants for regularisation and pass orders within a period of two months from the date of receipt of a copy of the order. Against the order, the respondents filed a Review Application No. 19 of 2014 which was dismissed by the Tribunal by the order, dated 16,06,2014.
2. Aggrieved, the respondents filed Writ Petition No.10721 of 2015 before the Hon'ble High Court of Madras, which by its judgment, dated 11.08.2016, confirmed the order passed by the Tribunal in the OA. A further direction was given to the 4th appellant (4th respondent in the OA) to execute the order, dated 22.11.2013, passed by the Tribunal, within four months from the date of receipt of the order. Against the order, dated 11.08.2016, of the Hon'ble High Court, the respondents preferred an Appeal before the Hon'ble Apex Court, in Civil Appeal No.3967 of 2018. The Hon'ble Apex Court disposed of the Civil Appeal, by remitting the case back to the Tribunal to decide the application for condonation of 4 MA 556 /2023 in OA 949/2011 delay, by setting aside both the orders of the Tribunal as well as of the Hon'ble High Court
3. Thus, the MA 556 of 2023 came to be filed by the applicants during November, 2023. According to them, the delay was due to the following reasons:
a) Some of the employees of ICMR had filed OA No.1332 of 2000 before this Tribunal for regularisation of their services from their initial date of appointment and the relief sought by them were considered positively without any hindrance.
b) Aggrieved, the respondents, ICMR, preferred appeal before the Ho'ble High Court of Madras in W.P. No.25490 of 2002. By the order, dated 25.08.2006, the order of the Tribunal was upheld by the Hon'ble High Court.
c) Against the order, the respondents, ICMR filed SLP before the Apex Court and the same was also dismissed on 26.10.2009. As a result, the employees are entitled to be regularised in service with effect from the date of initial appointment with all consequential benefits.
4. As the ICMR have failed to implement the order, the applicants filed CP Nos.1111& 1112 of 2010 to implement the order, dated 25.08.2006, of the Hon'ble High Court. Subsequently, the ICMR passed an order, dated 31.01.2011, regularising the services of those employees who had approached the Court. They also got the pensionary benefits. 5 MA 556 /2023 in OA 949/2011
5. On coming to know of the regularisation of employees of the ICMR, the applicants herein, who are similarly placed, filed OA No.949 of 2011, in June, 2011, seeking the benefits of regularisation. There is a delay of 261 days in the filing of the OA. According to them, unless the delay is condoned, they will be put to grave hardship and prejudice. It is also their contention that when there is merit in their case, technicalities cannot be taken into account. When merits and technicalities are pitted against each other, the Tribunal should exercise its discretion and give purposive construction in favour of the applicants.
6. Per contra, the respondents, in their reply, have made preliminary submission that the applicants were engaged between 1974 and 1988 and left the Human Reproduction Research Centre (HRRC) of ICMR between 2003 and 2009. The applicants filed the OA on the basis of the orders relied upon and referred to by them. The said orders are in personam and not in rem. The outcome of such cases cannot be taken as deliberated/directed as rem. Since 1974, 37 years have elapsed, which, according to the respondents, is an inordinate delay and the OA is liable to be dismissed, in limine, only on the ground of delay and laches.
7. The learned counsels appearing for both the sides have reiterated the 6 MA 556 /2023 in OA 949/2011 stand taken in their respective pleadings. We have heard them, at length, and perused the records.
8. Learned counsel for the applicants relied upon the Hon'ble Apex Court judgment,dated 17.10.2014, in the case of State of Uttar Pradesh and others (2015 (1) SCC 347). The relevant portions of the judgment are extracted as hereunder:
"22.1 The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would violative of Article 14 of the Constitution of India. This principle need to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not be treated differently.
22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.7 MA 556 /2023 in OA 949/2011
22.3. However, this exception may not apply in those cases where the judgment pronounce by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement, the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who was to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
9. Learned counsel for the respondents relied upon the following decisions in support of his contentions:
1. Order, dated 02.05.2016 of the Kolkata Bench of this Tribunal in OA Nos.1317 and 930 of 2014
2. Apex Court judgment in the case of Chairman, U.P. Jal Nigam & Anr. vs. Jaswant Singh & Anr.(2006 (11) SCC 464)
3. Apex Cout judgment in the case of Bhoop Singh v. UOI (AIR 1992 (SC 1414).
4. Apex Court judgment in the case of Union of India & Others v. M.K. Sarkar ( 2010 (7) SCC 59)
5. Apex Court judgment in the case of E. Parmasivan & Others v. Union of India & Others (2002 (5) SLR 307)
6. Apex Court judgment in the case of State of Uttaranchal & Another v. Sri Shiv Charan Singh Bhandari & Others (2014 (2) SLR 688
7. Apex Court judgment in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others (2014 (1) AISLJ 20)
8. Secretary, State of Karnataka and Ors v. Uma Devi & Ors. (2006 (4) SCC (L&S 197) 8 MA 556 /2023 in OA 949/2011
9. Order, dated 18.12.2023, of the Principal Bench of this Tribunal in MA No.2040 of 2023
10.Order, dated 09.08.2023, of the Principal Bench of this Tribunal in MA No.3596 of 2019
11.Order, dated 05.09.2022, of the Principal Bench of this Tribunal in OA No.1837 of 2015.
10. The main contention of the respondents is delay and laches. Section 21 of the Administrative Tribunals Act, 1985, deals with limitation, which, for the sake of convenience, is reproduced below:
"21.Limitation:-
(1) A Tribunal shall not admit an application--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such relates; and
(b) no proceedings for the redressal of such grievances had been commenced before the said date before any 9 MA 556 /2023 in OA 949/2011 High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-
section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period." It is clear from the above Section of the Act, that limitation is prescribed for filing the OA. In the instant case, it is the contention of the applicants that the delay is 261 days in filing the OA. Whereas, the respondents contended that the applicants prayed for regularisation after an inordinate delay of 37 years, since their appointment way back in 1974. Even assuming without conceding, the relied upon order passed by the Tribunal is in the year 2001 and the applicants have filed the present OA in the year 2011, which is more than 10 years.
11. Before going to the delay aspect, it is worthwhile to refer to the judgment, dated 19.07.2023, of the Apex Court in Civil Appeal No.3967 of 2018. filed by the ICMR. against the order of the Hon'ble High Court in this matter. While remitting the matter to the Tribunal, the Apex Court has observed as follows:
10 MA 556 /2023in OA 949/2011
"14. In this case, firstly, there was no prayer made by the respondents for condonation of delay and secondly the Tribunal was misled by a factually incorrect submission made by the respondents which is discussed above. We are surprised to note that the learned counsel appearing for the respondents after conceding that the submission made before the Tribunal and the High Court was factually incorrect has tried to defend the impugned orders which are based only on the said incorrect submission.
15. The Tribunal will have to decide the question whether there is a justification for the delay or whether as subsequently contended by respondents that there was a continuing cause of action.
16. In the circumstances, by setting aside both the orders of the Tribunal as well as of the High Court, we restore original application No.949/2011 before the Central Administrative Tribunal, Bench at Madras. The Tribunal will consider whether case was made out for condonation of delay after hearing both parties."
12. Now, we may refer to the decisions relied upon by the respondents, with regard to delay and laches.
In the case of Bhoop Singh v. UOI, the Apex Court held that "it is expected of a government servant who has legitimate claim to approach the Court for the relief he seeks within a reasonable period. This is necessary to avoid dislocating the administrative set up after it has been functioning on a certain basis for years. The impact on the administrative set-up and on other employees is a strong reason to decline consideration of a state claim unless the delay is satisfactorily explained and is not attributable to the claimant. The lapse of a much longer unexplained 11 MA 556 /2023 in OA 949/2011 period of several years in the case of the petitioner is a strong reason to not classify him with the other dismissed Constable who approached the Court earlier and got reinstatement. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interest in claiming that relief."
13. In the case of Union of India & Ors v. M.K. Sarkar, the Apex Court, while considering the law of limitation went on to hold that, when a belated representation in regard to a stale or dead issue/dispute is considered and decided in compliance with a direction by the Court/Tribunal to do s0, the date of such decision cannot be considered as furnishing a cause of action for reviving the "dead" issue or time barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which the order is passed in compliance with a court's direction.
14. Further, the Hon'ble Supreme Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others laid down broad principles regarding condonation of delay, culled out from various authorities. The Hon'ble Supreme Court, in paragraph 15, have held as under:
12 MA 556 /2023in OA 949/2011 "15. From the aforesaid authorities the principles that can broadly be culled out are---
(i) There should be liberal pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understand in their proper spirit, philosophy and purpose regard being had to the fact that these are basically elastic and are to be applied in proper proper perspective to the obtaining fact -situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumptions can be attached to deliberate causation of delay but gross negligence on the part of the counsel or litigant is to be taken note of
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the court, are required to be vigilant so that in the ultimate eventuate there is no real failure of justice;
(vii) The concept of liberal approach has to be encapsule the conception or reasonableness and it cannot be allowed a totally unfettered free play;
(viii) There is a distinction between inordinate delay and a delay of short duration of few days for to the former doctrine of prejudice is attracted 13 MA 556 /2023 in OA 949/2011 whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal declination;
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant facts to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach;
(x) If the explanation offered is concocted or the ground urged in the application are fanciful, the courts should be vigilant and to expose the other side unnecessarily to face such a litigation.
(xi) It is borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation'
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception;
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
15. In the facts and circumstances of the case and on the basis of the law laid down by the Apex Court in the cases cited supra, we are of the considered opinion that there has been an inordinate delay in seeking regularisation of their services by the applicants, in approaching the Tribunal, although they have claimed that the delay is of only 261 days. 14 MA 556 /2023 in OA 949/2011 The applicants have relied upon certain orders of this Tribunal which was passed in the year 2001 but the applicants filed the OA in the year 2011. They have also failed to give any convincing reasons for the delay in approaching the Tribunal.
16. Hence, we have no hesitation to hold that the MA is hit by the law of limitation as enshrined in Section 21 of the AT Act, 1985, and as explained by the Hon'ble Apex Court. Consequently, the OA No.949 of 2011 is dismissed. No order as to costs.
(M. SWAMINATHAN) (VARUN SINDHU KUL KAUMUDI) MEMBER(J) MEMBER(A) mas 18 . 06. 2024